My Lords, in moving Amendment 44, I shall also speak to Amendment 44A. I thank those who have co-sponsored the amendments: my noble friend Lord Rosser, the right reverend Prelate the Bishop of Rochester, the noble Baroness, Lady Meacher, and the noble Lords, Lord McColl of Dulwich and Lord Pannick.
There are a number of amendments in the group and I welcome that the Minister has tabled amendments that mirror ours. This is a real opportunity not only to ensure meaningful changes to the law but also to ensure that the law is enforced.
The term FGM is becoming more widely known. Many people have a vague understanding that it means that a female, usually a young girl, is cut and her genitals mutilated, but I am not convinced that the absolute horror and brutality of what is involved is as well understood as it should be. Let us be very clear about what we are talking about. The term “female genital mutilation” refers to all procedures involving the partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. The World Health Organization has classified it into three different types, including clitoridectomy—I never thought that I would have to say that in your Lordships’ House—excision or infibulation. What does that mean? Clitoridectomy is the partial or total removal of the clitoris. Excision is the partial or total removal of the clitoris and the inner labia, sometimes with the excision of the outer labia as well. Infibulation, which then follows, is the narrowing of the vaginal opening through the creation of a covering seal. The seal is formed by cutting and “repositioning” the inner or outer labia. There are other harmful procedures too, but this is essentially what these amendments refer to.
You do not have to be medically trained to appreciate not just the abusive brutality of what we are talking about but the serious health risks for the girls and women who are mutilated in this way, both at the time of mutilation and in later life. The risks include severe pain, injury to the surrounding organs, haemorrhage, infections that can cause death, chronic long-term pain and the obvious complications that occur during child- birth. That does not even begin to cover the psychological trauma that the girls carry for the rest of their lives. Reliable estimates are that, around the world, 130 million girls and women have undergone female genital mutilation. In Africa, 101 million girls aged 10 and over have been subject to FGM, and every year a further 3 million girls are at risk of FGM in Africa alone.
If noble Lords think that this is something that happens in other places and cannot happen here, let me share some horrifying and ugly statistics. A recent report in the UK based on 2011 census data and ONS birth statistics concluded that there are 170,000 women aged 15 and over in England and Wales who are living with the consequences of FGM. It is even more shocking that today in the UK 63,000 girls under the age of 13 are at risk of FGM. It is a serious problem here and it is a serious problem now.
In trying to tackle this we have tended to focus mainly on prosecution but we have not seen as many prosecutions as we would like given the high incidence of this crime. Our Amendment 44, on female genital mutilation orders, is aimed at trying to address the issue through prevention. This proposal is a direct result of the experience of those trying to protect young girls. It would establish female genital mutilation protection orders, which would be civil orders modelled on the forced marriage protection orders that enable a court to make an order to protect a girl or woman. This was originally a recommendation of the Bar Human Rights Committee of England and Wales. We are very grateful to the committee for its advice and for the briefings it has provided. They have been invaluable in our examination of these issues.
These orders would allow the court to intervene to prevent potential victims being subjected to FGM and would therefore act as a strong deterrent against the practice. The orders provide a range of injunctive remedies to the courts and, crucially, they focus on the victim. The powers include the ability for a number of people—including the potential victim but also a friend or a local authority—to apply to the court, where it is suspected on clear and compelling evidence that a child is at risk of mutilation, for an order prohibiting any interference with the bodily integrity of the child. It would also allow the court to intervene on its own account. The order could contain such prohibitions, restrictions or other requirements that the court considers appropriate for the purposes of protecting a girl or woman. We, like the Government, have largely mirrored the forced marriage protection orders because they have been used successfully hundreds of times now and they share common features with the FGM protection orders.
Girls and young women at risk are often reluctant to provide evidence that would criminalise their families. They are, by definition, young; they are vulnerable and effectively socially silenced. A difference between our proposals and the Government’s is that our amendment amends the Family Law Act 1996 and not the 2003 Act. There are a number of benefits to such orders being applied within family law jurisdiction. For cases involving children, civil protection would complement the existing measures for child protection and judges would be able to consider the full range of options available to the family courts provided for in the Children Act 1989. Civil protection would be more flexible but it would still be backed by criminal sanctions for breach.
All that matters is that legislation works. I appreciate that the government amendment is seeking the same aim by amending the 2003 Act, rather than the Family Law Act. There is an opportunity to better protect the child by amending the Family Law Act, both in terms of the remedies available and the enforcement of the legislation. We have seen already with the existing 2003 legislation that that is quite difficult. I appreciate that the Government have a consequential amendment, Amendment 50A, that in effect links these provisions to the family law, but I hope that the Minister can help on this. I am curious as to why the Government have chosen that route. It is not the route that was used in other cases. I am convinced that we are seeking the same outcome but we want to be convinced that the Government’s approach will still ensure that the joined-up approach to child protection, which is so vital in these cases, will be there. We do not disagree with the Government at all on the intention and the principle. We just want to ensure that we have the right route. We prefer—and our evidence backs this—the route through family law as a better approach than amending the 2003 legislation.
I turn to government Amendment 46G on female genital mutilation protection orders. We were very pleased to see that the Government also want this provision to be part of the Bill, but I ask the Minister to consider our concerns around this. Again, it is a matter of definition. The government amendment uses the definition of FGM that is in the 2003 legislation.
That was ground-breaking legislation at the time, but since its introduction it has become evident that not everyone interprets the law in the way that we intended. Specifically, the issue to be addressed is whether reinfibulation is covered. Infibulation is the removal of all the external genitalia and the fusion of the wound, in effect almost sealing the vagina. At childbirth women need to be deinfibulated to have any possibility of a vaginal birth. Noble Lords who were in the Chamber when we last debated this would have heard the noble Baroness, Lady Finlay, who unfortunately is not here at present. Her experience of helping a woman who needed to be reinfibulated in order to give birth, and the difficulties the woman faced in being unable to have a vaginal birth, is a description that will stay with me for a long time. Reinfibulation involves restitching to reclose and reseal the FGM. That is further mutilation following childbirth. Again we have taken advice, and we are very grateful to the Bar Human Rights Committee and Doughty Street Chambers’ lawyers—who, through their experience of dealing with such cases, have drawn the conclusion that the definition of reinfibulation in the 2003 Act is inadequate and confusing.
A recent report from the Home Affairs Select Committee reinforced that conclusion. It referred to the Director of Public Prosecution’s letter to Ministers which also asked for clarification of the law in respect of reinfibulation. It said that,
“infibulation, also referred to as Type 3 FGM, involves the narrowing of the vaginal orifice, it needs to be opened up during childbirth. The Intercollegiate Group told us there have been cases where women who were de-infibulated during delivery had returned in subsequent pregnancies having undergone re-stitching, i.e. reinfibulation … The Crown Prosecution Service, the Metropolitan Police, ACPO, the Intercollegiate Group and others all told us this meant there was a lack of clarity as to whether reinfibulation was covered by legislation”.
I have raised this matter directly with the Minister and I am grateful to him for discussing it this time. I fully understand that the Government’s opinion is that this is covered by the 2003 definition. Certainly that is what was intended when it was brought in. However, what matters is what happens in practice. Legal and medical practitioners are telling us something completely different from what the Government believe and what was the intent at the time. A note from Dexter Dias QC, who has acted in FGM cases, informs us of research undertaken by Professor Lisa Avalos—I can supply the Minister and the noble Baroness with this information—and they emphasise that the law’s silence about reinfibulation is causing confusion among practitioners for a number of reasons.
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Part of the problem is legal technicalities. Reinfibulation does not necessarily mean the cutting of healthy genital tissue; instead, it involves recreating that seal over the vagina. The CPS has interpreted the FGM Act as prohibiting reinfibulation, but health professionals have come to different conclusions about the position in law. The Royal College of Obstetricians and Gynaecologists, along with the Royal College of Midwives, the Royal College of Nursing and others, have interpreted the law’s silence to mean that the procedure is not covered by law because it does not involve cutting away additional tissue.
That confusion highlights the lack of clarity. My attention was drawn to a quote from the Royal College of Midwives’ report Tackling FGM in the UK: Intercollegiate Recommendations for Identifying, Recording and Reporting. It states:
“For the purposes of the FGM Act, re-infibulation is not covered”.
That is why our amendment uses instead the World Health Organization definition. This would ensure that the law is consistent with recognised international understanding, including the World Health Organization and UN standards, and clarify the confusion around issues such as reinfibulation.
I appreciate the Government’s view that the issue is covered, and I am sure that the noble Baroness has a note saying that it is. However, an academic political debate across the Dispatch Box will only be about what we believe the law should cover and is intended to cover. The evidence, whatever the Government believe, and whatever was intended when that law was introduced, is that the law has not been interpreted in that way by everybody. As a result women are suffering, including some of those who work most closely with women who are pregnant and giving birth. They want to protect women from FGM but believe that the law is inadequate and does not protect women. If there is any doubt at all and women are being reinfibulated in practice, surely we have a duty and a responsibility to ensure that there can be no doubt and there is absolutely clarity in the law.
I cannot press the Minister strongly enough on this. I am sure that there is a note saying, “Resist: it is covered in the law”. I ask Minister please to take this back and reconsider. I readily concede that our definition from the World Health Organization may not be perfect, and I am content to discuss that further. I believe that the Government want to get this right, and we want to work with them to make sure that it is.
It is also important that there is statutory guidance underpinning these provisions. That is reinforced by advice which we have had from lawyers that existing multiagency guidance is inadequate. I know that the Government are consulting on making the guidance statutory, but I would like assurances from the Minister that serious consideration is given both to the content and to it being statutory.
Our Amendment 44 provides anonymity for FGM victims. We welcome that the Government have also tabled an amendment on this. I have already mentioned the difficulties in getting victims to come forward and provide evidence. This amendment and the Government’s approach will make it just a little easier for them to do so. The Director of Public Prosecutions has called for this, as has the Home Affairs Select Committee. Where an FGM case goes to court, victims should be entitled to the same support and special measures that other victims are entitled to.
Finally, it has become clear that all the legislation in the world, with all its good intentions, only matters if enforcement is effective. Noble Lords will be aware of proposals from the Bar Human Rights Committee of England and Wales in its report to the parliamentary inquiry into FGM. One proposal was that an FGM
unit, similar to the Forced Marriage Unit, should be established. The Forced Marriage Unit drew together expertise from around the Government and Civil Service into one unit and has been highly effective. This is not a legislative point; it is basically an internal structural issue about how we make legislation work in practice. I do not know what consideration the Government have given to implementation and enforcement at this stage, but if the noble Baroness could say something about how we can make these new provisions as effective as possible and give some consideration to an FGM unit, that would be welcome.
These are important amendments, and I welcome the fact that the Government have also come forward with proposals. We are all trying to sink the same issues and end up in the same place. This is a real opportunity to make significant progress. I ask the noble Baroness to take on board the points that we have made, particularly around definitions—we would be very grateful. I beg to move.